The Death Penalty: Cruel and Unusual Punishment,
Or Societal Self-Defense?

Now, for the record, I do not support the death penalty as currently
applied in America today. The system, excuse me, the multitude of
systems currently used to determine whether or not capital punishment
is warranted or will be applied tends to be both capricious and
illogical. Additionally, a number of so-called ‘Capital Crimes’
consist of acts carried out against the State or in contravention of
State authority which would not be considered ‘mal in se’ if carried
out against an individual or lesser group. Thus, in this article I
will discuss the death penalty as a general concept rather than its
current application.

I have noticed that a number of Libertarians (the esteemed founder of
this publication among them) are very much against the idea of Capital
Punishment. Many seem to feel that the killing of a person for the
commission of a crime, no matter how heinous, by the state, is
inconsistent with Libertarian principles. I find this notion rather
misguided, especially considering that the use of lethal force to
defend lives and property is a fundamental part of Libertarian
philosophy. Yes, I understand that rights are not cumulative, and that
the community at large has no more or greater right to pursue any
course of action than does any individual. However, I submit that the
community, in the form of a properly limited government, has no less
of a right to act in defense of its members than does any individual
within it.

In the context of this article I would submit that there are a very
few crimes which warrant the elimination of the individual, or
individuals, who carry them out. Chief among these would be Rape,
Murder (being the unjustified killing of a sapient being), and Arson
(but only when carried out with depraved indifference to human life),
or the obvious attempt to carry out these crimes. While other specific
crimes might be included, they would have to be of the same clear-cut
and unambiguous nature. The motivations for these crimes, the status
of the victim, or other factors, are to me immaterial. The killing of
a person without justification is murder, whether the victim is the
President of the United States or Joe the wino is immaterial.

Neither should many of the so-called ‘mitigating factors’ be
considered. Mental illness or ‘diminished mental capacity’ is no
excuse for these kinds of acts. That a person is not of their right
mind when they commit such a crime is no more than self-evident, as
the Zen proverb tells us "Conflicts of right and wrong are a sickness
of the mind, for when right action is known, how can there be
conflict?" The capacity of an individual to commit a crime of this
type should be considered a demonstration that the person is unable to
conform to the most basic rules of the community and thus presents a
hazard to all members of that society. Such a peril must be dealt with
if the safety of the community is to be restored and whether that
menace comes as the result of a deranged mind is irrelevant.

The idea of deterrence is another nonissue within the context of this
discussion. While I admit to the possibility that the threat of loss
of life might cause some portion of those inclined to criminal acts to
reconsider doing so, this is not a proper concern. The only person I
wish to deter is the one person who has demonstrated the inability to
conform to societies penultimate rules, ie. the condemned. The person
who commits a rape or a murder has shown his or her contempt for the
lives of their fellow human beings and their continued existence
represents a clear and present danger to all other members of society.
Just as a dog who has bitten someone without provocation is killed to
prevent a repetition of that act, or the possibility of causing
greater harm, the killing of a human being who has demonstrated a
criminal disregard for another should be no different, either in
concept or application.

Libertarians feel that if a person is attacked, that person has a
right to use any force necessary to defend themselves. The problem is
that often, despite everything that victim does, the attacker succeeds
and escapes. I do not believe that success in such endeavors should be
allowed to prevent punishment. Not that I imply that others believe
this specifically, but the idea that a proper retaliation should
consist of shunning the individual in question until they agree to
make restitution (as if such would be possible) is to take naivete to
a new level. A society which allows the truly criminal person to
exist, assuming that once this person is identified others will refuse
to trade with them, is assuming that the law of supply and demand can
be ignored. While the majority may indeed refuse to treat with such a
person, there will inevitably arise a segment of society which will
see a profit in suppling the needs of such criminal types, at a hefty
premium. In truth, we must all recognize that the existence of the
criminal (the true criminal, not simply those who refuse to accept the
arbitrary whims which politicians and bureaucrats call law) represents
a danger to society and every individual within it. While the petty
criminal who steals the property of others without violence might
yield to ostracism and repent of his or her crimes. The Ted Bundy’s
and Jack the Ripper’s of the world will place every citizen in
jeopardy if allowed to exist, this kind must be removed from society
on a permanent basis.

Once we realize that we must remove this kind of person from our
community, what in a Libertarian society what are our options for
doing so? Incarceration, you say? Well, does a society based on the
principle of individual sovereignty have the right to deny basic
freedoms to any individual for any reason? If so, how will this
confinement be paid for, and by whom? Perhaps some might favor
"Coventry", a place where persons who commit crimes might be exiled to
exist by any means available. However, if we banish people to exist
away from the rest of society and therefore away from the normal,
material means of basic survival, do we not then have an obligation to
provide those means (food, water, shelter, etc.) or are we not simply
trying to avoid the taint of killing them ourselves by allowing nature
to do it for us? I won’t even discuss the idea of behavioral
modification because, simply put, either it will be prone to failure,
negating its usefulness, or it will be so drastic as to be little more
than the murder of the individuals’ personality as opposed to their
body. I for one see little moral difference between killing the who of
a person and destroying that person bodily. Additionally, should this
become an option where will it end? If we can alter a persons mind to
the point of conformity to our standards of behavior, will we not
inevitably face the day when others decide that the idea should be
extended to all citizens to insure conformity to some universal
standard?

In the end it comes down to a matter of which we hold to be more
important, an individual who has demonstrated contempt for the lives
of others, or the innocent victims who stand at risk if we allow known
killers and rapists to exist within our society. I submit that killing
such persons are the lesser of two evils. A society is a collection of
individuals who gather together for mutual benefit and those who
consciously act to grievously harm or kill other members of that group
are owed nothing by the rest, including the right to exist at all.

By the same token, the guilty party has no less of a right to exist
free of coercion by others. I know that seems paradoxical but I hold
it to be otherwise. Human beings have free will and should be allowed
to exercise it. If they should choose to harm or kill their fellow
human beings, we do have the right to remove those persons from our
midst permanently, but I do not believe we have the right to enslave
anyone, which is what any form of compulsory imprisonment amounts to.
I’ve heard it said that in ancient Rome a free man might be crucified
but that he would never be chained, because chains were the mark of a
slave. While I cannot verify the historical accuracy of this, I do
believe that it represents a basic truth, to deny a man freedom is a
far greater crime than to deny him his life, no matter what the
justification.

If you are attacked and kill the attacker, the moral responsibility
for that death lies with the aggressor. If that attacker escapes the
immediate consequences of his or her actions and is found later, the
elimination of that person by society is no different. We are each, as
individuals, responsible for our actions and for anything which occurs
as a result. We, as a society, must act to defend all members of our
society, and do so in as fair and equitable a manner as human
imperfection permits. To that end we establish a simple and objective
set of rules governing the behavior which is expected from the member
of our society. Those who violate the rules should pay a penalty and
if they break the ultimate rules they should pay the ultimate price,
anything less places the burden on the rest of society instead of on
the individual to whom it belongs.